African leaders have often used the constitution as an instrument of convenience in meeting their political goals. This has been evident in the number of times different states have had their governing laws changed to allow the incumbent to extend their stay in office or create new political structures to please their loyalists. A recent judgement by a Kenyan court however paints a picture of a judiciary keen on protecting democracy from the strong arms of the ruling class. 

Our Kenyan contributor, Linda Apollo, who has been following the attempts by Kenya’s President Uhuru Kenyatta and his new-found ally from the opposition Raila Odinga gives us some insight into the court ruling that may have ripple effects on the continent’s jurisprudence.

On 20 August 2021, a seven-judge bench of the Kenyan Court of Appeal delivered judgment in a set of consolidated cases known as the “BBI Appeals”. The case arose out of the judgment of the High Court of Kenya, where the Constitution Amendment Bill of 2020, containing seventy-four proposed amendments to the 2010 Kenyan Constitution, had been struck down for violation of the basic structure, and non-compliance with various procedural and substantive requirements under the Constitution’s amendment provisions.

In brief: on almost all significant issues, with fluctuating majorities, the Court of Appeal upheld the judgment of the High Court and affirmed the finding that the Constitution Amendment Bill 2020 was unconstitutional.

Let’s begin with the issue of basic structure. As the disposition indicates, the Court held that the basic structure doctrine is applicable in Kenya, that it provides an implied limitation upon the amendment process set out in Article 255 and that the basic structure can be altered only through an exercise of primary constituent power – i.e., a recreation of the conditions under which the Constitution was founded, which include a four-step process of civic education, public participation, Constituent Assembly Debate, and a referendum.

On the issue of the basic structure, the court argued that (a) there is a distinction between “amendment” and “repeal”, and (b) repeal can either be expressive or implied. The latter form of repeal can take place through a set of amendments that are fundamentally inconsistent with the Constitution as it stands.

The court notes that amendments always presuppose the existence of the constitution with which they must be consistent, and which they cannot abolish. All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.“ This is the argument that effectively forms the basis of the courts’ acceptance of the basic structure doctrine: that, just like a house no longer remains a house if you knock down its foundations and pillars (as opposed to merely redecorating it), this Constitution no longer remains this Constitution, if your amendments are such that alter its identity. Direct Democracy under Article 255.

While this argument is a persuasive argument for adopting the basic structure doctrine per se, in the Kenyan case there is an added wrinkle. And that is that the ten “core” themes set out under Article 255 already require a referendum in case they are to be amended; and furthermore, a “popular initiative” under Article 257 also requires public participation and a referendum. For this reason, the core of the Appellants’ case before the Court of Appeal was that the concerns which the basic structure doctrine sought to address had already been addressed within the Kenyan Constitution.

By having a mix of representative and direct democracy in its amendment provisions, the framers of the Kenyan Constitution and, by extension, the People had provided for an eventuality where any amendment to the basic structure could not be accomplished solely by the representative organs and would have to go to the People.

The popular initiative is a citizen-driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation and are the ultimate determinant through the referendum process on whether the amendment is carried.

The court noted that the “basic structure” of the Kenyan Constitution has already been identified in Article 255 through the setting out of ten thematic areas that require a referendum if they are to be amended, and a specific process for its alteration (involving the People) has been set out: That is to say that the framers of the Constitution of Kenya 2010,  conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided leeway for amendment of these thematic areas.

This is a clear indication that regarding the amendments, the Constitution of Kenya, 2010 is explicit and self-sufficient. The court finds particularly persuasive the Appellants’ argument that what distinguishes India from Kenya is that Article 368 of the Indian Constitution limits the amending power to a (representative) Parliament, while Articles 255-257 of the Kenyan Constitution explicitly envisage a role for the People.

The court goes on to note that the scheme of Articles 255 – 257 specifically responds to the pathologies identified in Kenya’s past, and their solution is found within the text itself. Indeed, the 2010 Constitution was informed by Kenya’s dark past. In the formulation of the 2010 Constitution, a conscious effort was made to ensure that we do not have hyper-amendments.” This is, thus, a powerful argument commanding the acceptance of two Justices and one that deserves a response. From the court’s judgment, we find three responses: conceptual, historical, and theoretical.

Conceptually, points out – taking forward the argument set out above, that, if you want to replace the Constitution instead of amending it, you must go outside of the Constitution and not within it (what the High Court referred to as the primary constituent power)

Historically, the Court of Appeal endorses the High Court’s historical analysis of the detailed public participation that went into the making of the Kenyan Constitution, as well as the desire to avoid hyper-amendments, but it also goes further and locates a core pathology of post-colonial African constitutionalism as that of excessive centralization of power within the figure of the President, and how this centralization of power enabled various Presidents to shrug off constitutional checks and balances through the process of amendments:

It is a sad blight on Africa’s post-independence experience that no sooner did the nations gain independence than the power elites embarked on diluting and dissolving all restraints on power and authority, a blurring and final obliteration of checks and balances and a concentration of power in the Presidency. They did this principally through facially legal and constitutionally compliant changes to their constitutions.

The court argues that Kenyans were entirely aware of this, in their search for a new constitutional paradigm. Crucially, the court then uses this argument to segue into its third point, which is a democratic-theoretical point, relying upon the work of  Yaniv Rozna and others, he argues that by themselves, referenda can be top-down, imposing a set of pre-decided choices upon a passive population.

The fact, therefore, that Articles 255 and 257 contemplate a referendum is not sufficient justification to argue that the reason why the basic structure doctrine exists in the first place has been adequately addressed within the Constitution itself: “an effective bulwark against abusive constitutionalism, therefore, seems to me to be, on the authorities, one that entails more as opposed to fewer people involvement.”

The popular initiative is a citizen-driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation and are the ultimate determinant through the referendum process on whether the amendment is carried. We are now, therefore, in a position to reconstruct the essence of the court’s  argument: first, that amendment and repeal are two different things; secondly, that therefore, constitutional alterations that fall in the latter category amount to reconstituting the Constitution, and must be taken to the People exercising primary Constituent power; and that thirdly, the existing provisions for direct democracy and referenda under Articles 255 to 257 lack the extent and guarantees of public participation that would in light of Kenyan constitutional history be sufficient safeguards against abusive constitutionalism. Thus, the High Court’s finding regarding the basic structure doctrine and the four-step participation process is correct and ought to be upheld.

I believe that both Courts are correct on this point. It is important to note that the singular Kenyan amendment provisions have called forth a singular solution: departing from global basic structure doctrine, neither the High Court nor the Court of Appeal has held that any provision of the Kenyan Constitution is unamendable per se; but rather, even the basic structure can be amended, subjected to procedural and procedural/substantive constraints that aim to replicate the participatory character of its founding.

The framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment. But at the end of the day, I believe that the two Courts are correct for an even simpler reason: the very existence of the BBI and the Constitution Amendment Bill.

The fact that this case came to Court at all shows that notwithstanding the care with which Articles 255 – 257 were crafted, it was still possible to push through far-reaching constitutional changes, via a top-down elite political pact, while still staying within the formal constraints of the Constitution.

With respect to the reforms proposed by the BBI, it is important to note that parchment prohibitions alone are not enough to secure and protect the fundamental rights of Kenyans. Like their counterparts in other African countries, Kenyans are frustrated with their political elites who have been negligent in safeguarding the rights of the masses and providing them with the wherewithal to create the wealth that they need to confront poverty and improve their living standards.

Kenyatta says the constitutional review is meant to mitigate the current “winner take all” system that has caused post-election conflicts throughout the country’s history. Could this be a ploy by the head of state, who is not allowed to run for a third term in the August 2022 election, to stay in power as prime minister? Or maybe a power-sharing deal with Odinga.

While institutional reforms are critical for peace and security, as well as economic and social advancement of all Kenyans. For these institutions to perform their functions and advance the general welfare, Kenya must have a virtuous public and virtuous leader or else the country will remain trapped in a state of political dysfunction and deteriorating economic conditions.

Lesson to learn in this journey: 2005 and 2010 referendums are testimony that the people of Kenya embraced and adopted a constitutional making concept in which the sovereign rights to replace it was exercisable.

This ruling also establishes certain independence of the judiciary from the executive with the two arms of government being in constant battles with each other. Other African countries can pick a leaf from the independence of the Kenyan judiciary.

Now, of course, the counterargument will be that all the two judgments have achieved is replaced the elite political pact with gatekeeping by a judicial elite. To this, only one answer can be made, that if future judicial decisions on this point reflect the clarity of reasoning and self-awareness exhibited by these two judgments, then fears of a judicial capture will likely not come to pass; but that, of course, is something that only time will tell. In this sense, the basic structure doctrine is a bit like HLA Hart’s famous rule of recognition: nothing succeeds like success.

Cover Photo courtesy of The Judiciary Kenya Facebook Page.